The Legacy of Louis D. Brandeis

Urofsky, Melvin I., Journal of Appellate Practice and Process

Few men in American history have had greater impact on so many different areas of our life than did Louis Dembitz Brandeis (1856-1941). He was a successful and innovative lawyer at a time when the practice of law was changing; he took his legal acumen and applied it to reform, and showed future reformers how they could defend new legislative ideas before the courts. Appointed to the United States Supreme Court in 1916 by Woodrow Wilson, he was responsible for advances in jurisprudence that include the bases for the modern doctrines of free speech and privacy. Finally, in his tenure as head of the American Zionist movement he articulated a rationale that continues to inform relations between Israel and American Jewry.

THE LAWYER

After study at the Harvard Law School and a short stint in St. Louis, Brandeis joined his law school classmate Samuel D. Warren to open what was to become one of the most successful firms in Boston. Prior to the Civil War, lawyers usually practiced alone and had to be generalists, handling everything from land deeds to wills to criminal matters and contracts. People usually did not go to see a lawyer until after an event had happened, such as "He said he would sell me a horse but delivered a mule." By the 1870s, however, as American entrepreneurs built factories, mills, and railroads, it became too expensive to wait until after a problem occurred to call in a lawyer. A businessman did not want to spend thousands of dollars and then discover that he might be in violation of a law. So business owners began going to a lawyer before the fact, saying in effect "I want to do X. Is there a problem? If so, how can we deal with it?"

The most successful attorneys at this time were those who understood business, and could advise their clients not only about the law but about business matters as well. Brandeis's father had been a successful wholesale grain distributor in Louisville, Kentucky, and from his early years Louis heard his father talk about business matters, and how problems could be resolved. In practice, whenever Brandeis took on a new client, he would go to that person's factory or store (the Filene Brothers were one of his earliest clients) to see what they did and how the business operated. He tried to learn as much about the client's business as possible. "Why should they come to me," he once said, "unless I know as much if not more about their business as they do?"

A good example of this commitment to understanding his clients' business is when the shoe manufacturer William McElwaine came to see Brandeis. A man who had worked his way up from poverty, McElwaine took pride in the fact that he paid his workers well and treated them fairly. Now there were some rough times, and he needed to reduce wages. His workers, however, threatened to strike if he did. He asked Brandeis to look into the matter.

Brandeis went to the plant, spoke with the workers, and discovered that while they did indeed earn good wages when they worked, they only worked about thirty weeks a year. Orders came in bunches, and when there were many orders the men did well. But once orders fell off, the plants closed until new orders came in. So while the men earned good wages when they worked, if one averaged their earnings over fifty-two weeks it came to very little.

He then called McElwaine in and told him his workers had a legitimate complaint because of the irregularity of their work. McElwaine protested that that was always how the shoe business had been run. Brandeis then laid out a plan that would bring in orders on a more regular basis, thus providing the men with almost a full year's employment. McElwaine agreed to try it; the plan proved successful, and within a few years the entire shoe industry had adopted it.

Although he himself was a generalist (his law partner said that he believed the only area Brandeis had never practiced in was criminal law), he nonetheless recognized that clients were demanding a higher level of expertise in multiple areas than one person could provide. …

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